View Page As PDF
Share Button
Tweet Button

The U.S. Supreme Court’s recent ruling on the Defense of Marriage Act (DOMA) in United States v. Windsor has had a substantial impact on legally married same-sex couples’ rights to federal benefits, including spousal leave benefits under the Family and Medical Leave Act (FMLA). In light of the Court’s decision, employers need to review and update their FMLA policies relative to spousal leave provisions.


In a landmark decision, the Court in Windsor struck down Section 3 of DOMA, which limited the definition of marriage to “a legal union between one man and one woman,” as it violated due process and equal protection principles embodied in the Fifth Amendment. The provisions of Section 3 restricted the definition of marriage and spouse to heterosexual marriages for all federal laws, and, because of that definition, legally married same-sex couples were not entitled to federal benefits or rights. The FMLA, which in part requires that covered employers allow their employees up to 12 weeks of unpaid leave to care for a spouse with a serious health condition, formerly limited the term “spouse” to members of the opposite sex. As a result, FMLA leave benefits did not extend to employees needing time off to care for a same-sex spouse with a serious health condition.


In finding Section 3 of DOMA unconstitutional, the Court effectively eliminated the definition of “marriage” or “spouse” under federal law and deferred the regulation of marriage to the states. The result is that federal rights and benefits, including FMLA spousal leave benefits, now apply equally to both heterosexual and same-sex couples who are legally married under state law.


The Secretary of Labor, Thomas Perez, affirmed the availability of spousal leave under the FMLA based on same-sex marriages in a recent internal memo. The internal memo further indicated that the Department of Labor (DOL) has updated departmental guidance regarding spousal leave provisions of the FMLA to reflect the Windsor decision, including removing references to DOMA from its correspondence. Indeed, as part of its effort to implement the Windsor ruling, the DOL updated the definition of “spouse” in Fact Sheet #28F to include “a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including ‘common law’ marriage and same-sex marriage.” The DOL is also reviewing a 1998 Opinion Letter in which it applied DOMA’s definition of marriage to the FMLA in light of the Supreme Court’s decision in Windsor.


As a state’s definition of “marriage” will govern, and given the diversity among states on this issue (some states provide for same-sex marriage, some recognize only heterosexual marriage and some have civil unions or domestic partnerships), employers must be mindful of which state law applies for FMLA spousal leave purposes. A same-sex couple’s eligibility for FMLA benefits is tied to the state in which the couple resides and an employer’s obligation to its employees will reflect the diversity of state laws. More specifically, an employer must determine if same-sex marriages are lawful in the state where the employee requesting FMLA leave lives, not where the employer is located or where the employee actually works.


Employers with employees living in states that recognize same-sex marriages should ensure compliance with federal law by updating their FMLA policy, forms and practices to provide for spousal leave benefits for recognized same-sex marriages. This includes FMLA leave for an employee who needs to care for a same-sex spouse with a serious health condition, as well as leave because of a qualifying exigency due to the employee’s same-sex spouse being on covered active duty and FMLA military caregiver leave if the employee is the same-sex spouse of a covered servicemember. Employers should also ensure that human resource personnel, managers and supervisors are aware of this change in FMLA coverage.